AMERICAN ARBITRATION ASSOCIATION Michael C. … · MIDDLESEX CORRECTIONAL OFFICERS’ ASSOCIATION,...
Transcript of AMERICAN ARBITRATION ASSOCIATION Michael C. … · MIDDLESEX CORRECTIONAL OFFICERS’ ASSOCIATION,...
1
AMERICAN ARBITRATION ASSOCIATION Michael C. Ryan, Esq., Arbitrator
In the matter of the arbitration between MIDDLESEX CORRECTIONAL OFFICERS’ ASSOCIATION, NEPBA, LOCAL 500 - and - MIDDLESEX SHERIFF’S OFFICE
AAA No. 112013000663 Officer
DECISION AND AWARD
For the Middlesex Sheriff’s Office Heather E. Hall, Esquire For the Union Gary G. Nolan, Esquire Megan C. Cooper, Esquire
I. Background.
The hearing in this matter took place on April 17, May
15, and August 5, 2014. The parties stipulated to the
following statement of the issues:
Did the Middlesex Sheriff’s Office have just cause to discipline John Coughlin? If not, what shall be the remedy?
Both parties filed post-hearing briefs.
Article VI of the collective bargaining agreement
(“CBA”) provides: “The Sheriff, or his designee, shall have
the right to discipline or discharge an employee for just
2
cause.” Also relevant to the grievance are the following
policies of the Middlesex Sheriff’s Office (“MSO”):
Policy 220: Employee Conduct and Discipline * * *
220.03.05. Violation of the following rules and regulations may result in disciplinary action up to and including dismissal. Disciplinary action may also be instituted for other just cause …. 220.08.1. Officers shall maintain the internal order, security and discipline of the facility. Officers shall remain alert at all times and respond to problems in an efficient, responsible, and professional manner. 220.08.2. Each Officer shall be responsible for the whereabouts of all inmates under his or her supervision and control. The Officer must routinely confirm the whereabouts and status of such inmates unless the responsibility has been transferred to, and accepted by, another Officer.
* * * 220.08.11. Each employee shall be conscious of the control of contraband and shall make every effort to prevent any inmate from receiving, possessing or having access to unauthorized items. 220.11.1. Employees are responsible for the care and security of property owned or leased by the Middlesex Sheriff’s Office which is within the employee’s control or area of supervision. Property includes all materials, supplies, vehicles and equipment as well as the physical plant.
* * * 220.14 List of Offenses
* * * 24. Negligence or dereliction of duty.
* * * 26. Poor and careless work performance.
* * * 33. Violating any provision of a written order, including post orders, policies and procedures, directives or rules and regulations.
3
Policy 501: Communication, Reporting and Supervision 501.03.
* * * 4. Each housing unit and custodial post within the facilities shall maintain a written log book in which are recorded post assignments, routine and emergency situations and unusual occurrences.
501.06.
3. Maintenance Reports. (a) Reporting of Emergency Maintenance Problems. (i) Any maintenance problem that may directly or indirectly pose a safety or health hazard to staff or inmates, or create a security risk shall be immediately reported as an emergency maintenance problem. … (b) Reporting Routine Maintenance Problems. … (ii) Any staff member who becomes aware of a routine maintenance problem that has not been previously reported shall submit a Maintenance Request as soon as possible prior to the end of his or her shift.
501.08. Supervisional Visits 1. The Superintendent shall visit all major areas
within the facility at least once each month.
2. At least once each week, the Assistant Superintendent shall visit all areas of his or her facility, including inmate living quarters …. The Assistant Superintendent shall evaluate the…condition of the physical plant…compliance with [MSO] policies … [and] shall initiate corrective action when necessary.
3. At least weekly, Department Managers [i.e., Captains] shall inspect the areas for which they are responsible…[and] evaluate their areas in detail, including … the condition of the physical plant …. Department Managers shall evaluate
4
their findings and respond with formal corrective action plans when necessary.
501.12. Unit Log Books
* * * 5. Required entries The following events shall be routinely recorded for the unit: a. All subsequent inmate counts b. All changes to the count such as admissions, discharges and transfers …. c. All outcount adjustments such as court trips and medical trips d. All visits to the unit by any person … e. All staff reliefs and staff reassignments f. Any maintenance or repair activity … g. Any and all medical activity such as sick call, emergency or nonemergency treatment and the distribution of medications … h. All security checks, searches and shakedowns i. All meals served j. The distribution of mail or canteen k. The exchange of laundry or the issuance of clothing … l. All recreation periods m. The occurrence of any treatment meetings … n. The conduct of religious services 6. Other Entries The following type of entries must also be recorded for the unit: a. Serious incidents b. Major disciplinary infractions c. Escapes or escape attempts d. Changes in the custody status of an inmate … e. Occurrence of a use of force f. Employee accidents or injuries g. Occurrence of any major maintenance problem h. The interruption of the supply of water or electricity … i. Urine testing The officer responsible for recording log entries shall exercise his or her judgment in recording any
5
other unusual or significant events or information that may prove valuable.
Policy and Procedure 608 Sick Call and Unimpeded Access to Health Care
608.06 Referrals to Health Services 1. All inmate requests for medical care made to
correctional officers, including but not limited to emergency care, shall be forwarded without delay and without judgment to health services staff.
Post Order – 18th Tier SECTION 22. Officers shall be stationed within the assigned cell areas and constantly patrol the assigned area, keeping detainees under close surveillance.
________
The grievance concerns the suspension and demotion of
Lt. John Coughlin, Jr., the grievant, after a detainee1 of
the Middlesex Jail in Cambridge (“Cambridge Jail” or
“jail”) attacked another by pouring boiling hot water on
him on December 14, 2012.
The grievant has worked for the Middlesex Sheriff’s
Office (“MSO”) since 1984. He spent most of that time at
the Cambridge Jail. The jail was on the upper floors of
1 The words inmate and detainee are used interchangeably throughout but they are not exactly the same. I understand that the inmates involved in this case are pre-trial detainees, typically those who have been charged with a crime and detained pre-trial due primarily due to a lack of bail.
6
the former Middlesex County Courthouse.2 The grievant had
worked on the 18th tier for twelve years.
The grievant’s work record is exceptionally positive.
Other than a single written warning in 1998, he has never
been disciplined. He was promoted to sergeant soon after
he was hired, voluntarily relinquished that rank in the
late 1980s to go on the night shift for family reasons,
promoted to sergeant again, and promoted to lieutenant in
2012. Recent evaluations praise his leadership, judgment,
fairness, and problem-solving skills, and feature comments
such as “”handles his work post with sound judgment,” “very
good at making decisions,” “solves any problem arising in
his area,” “shows complete knowledge when judging a
situation,” “very aware of any type of security issue,” and
“always takes responsibility for his actions.”3
Superintendent John Costello became superintendent of
the Cambridge Jail in September 2012. On March 22, 2013,
after an internal investigation, he charged the grievant
2The Cambridge Jail was closed in June 2014 and the inmates were moved to a newly constructed facility for pretrial detainees in the Billerica House of Correction. The courthouse portion of the building was closed in 2008. 3 The grievant also received a spontaneous commendation from an inmate of the jail during a videotaped interview: “[The grievant] was doing what he thought was right. He’s a gentleman. … He really cares about people. I think he’s the victim in all this.’
7
with the following twelve violations of the MSO’s policy on
Employee Conduct and Discipline:
220.08.1. Officers shall maintain the internal order, security and discipline of the facility. Officers shall remain alert at all times and respond to problems in an efficient, responsible, and professional manner. To wit: On December 14, 2012, at approximately 3:00 a.m., while assigned to the 18th Tier at the Middlesex Jail in Cambridge, Lieutenant Coughlin opened Detainee C.’s assigned cell on the B Side of the Tier to allow C. to get water from the 18th Tier hot pot after C. complained about having trouble breathing, instead of sending C. to Medical. 220.08.1. Officers shall maintain the internal order, security and discipline of the facility. Officers shall remain alert at all times and respond to problems in an efficient, responsible, and professional manner. To wit: On December 14, 2012, at approximately 3:00 a.m., while assigned to the 18th Tier at the Jail, Lieutenant Coughlin failed to monitor C. after he let C. out of his cell to get water from the 18th Tier hot pot, resulting in C.’s having the opportunity to injure another detainee, L., by pouring hot water on him. 220.08.2. Each Officer shall be responsible for the whereabouts of all inmates under his or her supervision and control. The Officer must routinely confirm the whereabouts and status of such inmates unless the responsibility has been transferred to, and accepted by, another Officer. To wit: Lt. Coughlin failed to monitor C.'s movements after opening C.'s assigned cell. 220.08.11. Each employee shall be conscious of the control of contraband and shall make every effort to prevent any inmate from receiving, possessing or having access to unauthorized items. To wit: Lt. Coughlin allowed C. access to the 18th Tier hot pot, which should have been secured in its metal cage, but was not secured. Lt. Coughlin should have confirmed that the hot pot was secured in its metal cage before allowing C. to drink from it. Lt. Coughlin could have minimized C.'s access to hot water by doing so.
8
220.14.26. Poor and careless work performance. To wit: Lt. Coughlin allowed C. access to the 18th Tier hot pot, which should have been secured in its metal cage, but was not secured. Lt. Coughlin should have confirmed that the hot pot was secured in its metal cage before allowing C. to drink from it. Lt. Coughlin could have minimized C.'s access to hot water by doing so. 220.11.1. Employees are responsible for the care and security of property owned or leased by the Middlesex Sheriff's Office which is within the employee's control or area of supervision. Property includes all materials, supplies, vehicles and equipment as well as the physical plant. To wit: Lt. Coughlin was in charge of the 18th Tier on December 14, 2012. The hot pot on the 18th Tier was not secured in its cage. 220.14.24. Negligence or dereliction of duty. To wit: Lt. Coughlin failed to monitor C. after he let C. out of his assigned cell. In addition, Lt. Coughlin did not exercise other options for dealing with C.'s breathing complaints, such as sending him to Medical. 220.14.24. Negligence or dereliction of duty. Lt. Coughlin failed to monitor C. after he let C. out of his assigned cell. In addition, Lt. Coughlin did not exercise other options for dealing with C.'s breathing complaints, such as sending him to Medical. This conduct would be inappropriate if engaged in by any correction officer. When committed by Lt. Coughlin, who is a Lieutenant with responsibility to oversee the entire unit, it demonstrates a dereliction of the management responsibilities of a Lieutenant. 220.14.24. Negligence or dereliction of duty. To wit: Lt. Coughlin did not communicate with Officer Stephen Gardner, who was assigned to Lt. Coughlin's shift on the 18th Tier at the Cambridge Jail on December 14, 2012, that Lt. Coughlin had let C. out of his cell. 220.14.24. Negligence or dereliction of duty. To wit: Lt. Coughlin did not communicate with Officer Stephen Gardner, who was assigned to Lt. Coughlin's shift on the 18th Tier at the Cambridge Jail on December 14, 2012, that Lt. Coughlin had let C. out of his cell.
9
Lt. Coughlin was responsible for monitoring A and B side of the 18th Tier, and he did not monitor C.'s movements. As a Lieutenant responsible for overseeing the entire 18th Tier, Lt. Coughlin's conduct demonstrates a dereliction of the management responsibilities of a Lieutenant. 220.14.33. Violating any provision of a written order, including post orders, policies and procedures, directives or rules and regulations. To wit: Policy and Procedure 501.03.4. Each housing unit and custodial post within the facilities shall maintain a written log book in which are recorded post assignments, routine and emergency situations and unusual occurrences. Lt. Coughlin did not document, in the log book, that he opened C.'s cell door, nor did he document that C. complained about his breathing. 220.14.33. Violating any provision of a written order, including post orders, policies and procedures, directives or rules and regulations. To wit: Post Order-18th Tier, Section 18.22. Officers shall be stationed within the assigned cell areas and constantly patrol the assigned area, keeping detainees under close surveillance. Lt. Coughlin did not monitor C. after Lt. Coughlin opened his cell door.
On April 22, 2013, after a disciplinary hearing,
Superintendent Costello sustained all twelve charges. He
demoted the grievant from lieutenant to correctional
officer (“C.O.”) and suspended him for 120 days, 10 for
each charge, with 24 days to be served immediately and the
remaining 96 held in abeyance for two years and imposed for
any other disciplinary incident.
Superintendent Costello stated the reasons for his
decision in the letter of suspension and demotion:
… You pleaded not guilty to all of the charges ….
10
… The fact that you have not taken responsibility for your actions causes me great concern. The only statement you have made that suggests you recognize any amount of responsibility was during your investigative interview when you acknowledged that by opening the door to C.'s cell, you enabled the attack. … You indicated that disciplinary action against you will adversely affect your co- workers, who will be afraid to make a decision for fear of being disciplined. Such a statement demonstrates your failure to accept any personal responsibility. … You cannot blame the overcrowding for your actions. … You should not have let C. out of his cell and left him unmonitored. You should have secured the hot pot. The fact that there were detainees sleeping in bunks should have led you to be watching the area even more carefully …. The Cambridge Jail housed pre-trial detainees, mostly
individuals who were unable to make bail. The jail was
designed to house 160 detainees in cells, but for many
years it contained well over twice that number. Since
there were not enough cells for the population, the so-
called “overflow” detainees slept in bunk beds in the
hallways of the tiers, unsecured in any way.
Union and management witnesses agreed that jail
facility was understaffed. As the number of detainees
rose, there was no corresponding increase in the number of
C.O.s; to the contrary, there was a significant reduction.
By December 2012, half the number of C.O.s (compared with
11
ten or fifteen years earlier) were supervising twice the
number of detainees.
The jail was dilapidated as well as overcrowded.
Superintendent Costello testified that when he arrived in
December 2012, about 40 cell doors had broken locks. The
HVAC system was also defective, so the jail was always
either overheated or freezing cold.
The incident that led to the grievant’s suspension and
demotion took place on the 18th tier on December 14, 2012.
There were 58 cells on the tier, back-to-back in two
parallel rows running the length of the building. The
cells were walled on three sides and barred on the fourth.
At least fifteen of the cells had broken locks, but
detainees were housed in them nonetheless.
The officers’ station was in the center of the two
rows, breaking them up into four “sides”: A, B, C, and D.
A long hallway ran the length of full length of the A and B
sides, and the C and D sides. The barred cells looked out
on this hallway. The bunk beds were along the outer walls
of the hallways, opposite the barred cells.
At either end of the tier was a window, which was
usually open in the winter in order to relieve the
overheating. The tier was sometimes so hot that inmates
were allowed to drag their mattresses down the hall to
12
sleep by the window. According to one inmate, two or three
inmates slept there every night.4
Just outside the officers’ station on the B side was a
large hot-water urn (the “hotpot”), so that detainees could
have hot drinks. (There were hotpots on the other three
sides as well, though not always in working order.) The
hotpot was in a metal cage attached to the wall, with a
metal door that could be padlocked. Across the hall from
the hotpot was the B-side shower.
The regular staffing of the midnight shift on the 18th
tier was two officers. On December 13, 2012, the grievant
worked that shift with C.O. Gladyszak. There were 102
detainees on the tier. About half were in cells, and the
rest were “overflow,” sleeping in bunks in the hallway. On
the B side, there were 26 detainees, fourteen in cells and
twelve in bunks.
One of the detainees on the B side was C. C. had been
on the tier for two days. He was assigned to cell B5,
which had a working lock.5 C. was detoxing from heroin and,
4No detainee testified at the arbitration hearing, but during the pre-disciplinary investigation, the MSO interviewed twelve B-side detainees, plus L. and C.) Videotapes of the interviews were submitted into evidence. 5 It is not clear how housing assignments for inmates were made. Apparently it was not by seniority, because when C. was assigned to a cell, there were inmates who had been in
13
according to one of the detainees, stayed in his cell most
of the time because he was sick. Witnesses testified that,
ideally, detoxing inmates should be in the infirmary, but
that facility had only three beds, and there was no room
for C.
An overflow detainee, L., was in bunk 26, a bottom
bunk near C.’s cell door. Several detainees described L.
as easygoing and “a good guy.” No witness and no detainee
had observed any animosity between C. and L.
Toward the end of the shift, C. told C.O. Gladyszak
that he was having trouble breathing. The grievant
directed Gladyszak to escort C. to the Medical Unit
(“Medical”) and entered the trip in the tier’s log book.
Medical sent C. back to the tier ten minutes later, having
found nothing of concern.
The following night, December 14, the grievant and
C.O. Stephen Gardner worked the midnight shift. Just
before 3:00 AM, C. told the grievant that he was again
having trouble breathing. The grievant testified that C.
“pleaded that he was uncomfortable,” but showed no obvious
signs of respiratory distress.
overflow for some time. Nor was there evidence that it depended on the potential violence of the inmate.
14
The grievant testified that detainees often complain
of feeling sick, “some of them almost daily,” and further
testified, “I can’t bring 116 guys to medical every time
they want.” In every instance, the grievant made a
decision based on the individual facts. If an inmate
complained of chest pains, for example, he would always
send him to Medical.
In this instance, the grievant decided that there was
no reason to send C. to Medical again. Medical had found
nothing wrong the previous night under exactly the same
circumstances, and a nurse would visit the tier for daily
medical rounds in about two hours. The grievant told C.,
“We just did this nineteen hours ago and [Medical] couldn’t
do anything for you. I don’t see any difference between now
and 19 hours ago.”
To help C. feel better, the grievant brought him a
bowl of cereal and some cold water to drink. C. remarked
to the grievant that “hot water work[ed] better” for his
congestion, so the grievant unlocked C.’s cell and let him
out to get some hot water and some fresh air by the window.
The grievant testified, “There were already sixteen guys
who were not locked up. One more was no big deal.”6
6Presumably, the grievant was referring to the twelve inmates in bunks and others in cells with broken locks.
15
After letting C. out of his cell, the grievant went to
the officers’ station and resumed his normal activities.
He did not tell Gardner that he had let C. out of his cell,
and did not record it in the log book.
The proper procedure for dispensing hot water to
detainees in the Cambridge Jail was not in writing, but the
witnesses were familiar with it. When a detainee wanted
hot water, a C.O. was supposed to unlock the cage, stand by
while the detainee filled the hotpot with a hose from the
utility closet, replace the hotpot in the cage, turn it on,
and lock the cage.
However, according to both MSO and Union witnesses
(and detainees as well), that procedure was seldom, if
ever, followed. For one thing, the cages on the A, C, and
D sides could not be locked, because the hasps on the cage
doors had been broken for quite some time.
Furthermore, according to Lt. Mark Farrell, who
testified under subpoena for the Union, it was “impossible”
for officers to follow the correct procedure. Farrell
testified that the hotpot was emptied so often, and it was
so time-consuming for officers to unlock the hotpot, wait
for the inmate to fill it, and lock it back up again, that
officers could not follow that procedure and at the same
time maintain vigilance over the tier. Therefore, the
16
officers left the cages open and allowed the detainees to
fill the hotpots themselves from the showers. The hotpot
cage on the B side was not broken and could be locked, but
it too was customarily left open, and detainees “self-
served.”
For these reasons, when C. walked down the hall to the
hotpot on the night of December 14, the cage was unlocked.
During the ensuing half hour, neither officer observed C.
The grievant was nearby in the officers’ station, and
either could not see C. or did not look.7
C.’s activities were captured on tape by a security
camera. He is seen in the dim night-time lights, removing
the hotpot from the unlocked cage and filling it with water.
For the next 30 minutes, C. went back and forth between his
cell and the hotpot, apparently waiting for the water to
heat up. Eventually C. sat on the floor in front of the
shower, across from the hotpot. As noted, the grievant did
not observe C., but testified that he heard him fill the
hotpot with water, and heard the sound of his flip-flops as
he walked up and down the hall.
7 In general, visibility from the officers’ station to the B side was poor, impeded by a dusty and dirty metal/Plexiglas screen. However, the hotpot was near the officers’ station, and apparently visible, although it is not clear whether C. himself was visible when crouching or sitting on the floor, which he did while waiting for the water to heat.
17
After sitting on the floor for a minute or two, C. got
up, removed the hotpot from the cage, put it on the floor,
unplugged it, removed its cover, and then glanced over at
the officers’ station. After some hesitation, C. picked up
the hotpot, trotted down the hall, and dumped the hot water
onto L. as L. lay sleeping in his bunk.
L. woke up screaming in pain. When he perceived what
had happened, he punched C., who fell to the floor. Within
seconds, officers converged from all over the facility and
separated the two detainees. During the melee, the
grievant angrily shouted, “You fucked me!” at C. He
testified that he believed C. had deliberately manipulated
him into unwittingly facilitating the attack by letting C.
out of his cell.
L. was taken by ambulance to Massachusetts General
Hospital where he was treated for severe burns. C. was
permanently removed from the tier and criminally charged
for the assault on L. Neither the officers nor the
detainees could explain C.’s assault on L. No one had seen
any indication of hostility between the two, or indeed any
interaction at all.
Superintendent Costello ordered the Sheriff’s
Investigation Unit (“SIU”) to investigate the incident.
Investigator Anthony DiSchino reviewed the security tape of
18
the incident, the reports of the officers involved, the log
book for the tier, and other relevant evidence. He
interviewed the grievant, C.O. Gardner, L., and the other
detainees on the B side, as well as the two superior
officers on duty that night. On February 25, 2013,
DiSchino forwarded his report to the superintendent. Among
his findings were:
[Captain Gannon was asked] if in the past when staff has removed a detainee from a cell, do the officers inform the Shift Commander. Captain Gannon’s response was, “Yes.” [He was then asked] why do officers call the Shift Commander? Captain Gannon Said, “There could be a number of issues.” [He] implied that the detainee could have issues in the facility due to their charges, past history or family relations. … Captain Gannon was asked about proper protocol pertaining to hot pots …. Captain Gannon explained that the hot pot cages are unlocked for detainees to fill and then locked back into the cage once they are filled. Captain Gannon also confirmed that the keys to the hot pot are kept in the officers’ station only to be in possession of an officer. …
In sustaining the charges against the grievant,
Superintendent Costello accepted this description of the
protocol for the hotpot. In the letter of suspension and
demotion, the superintendent stated:
Officers are supposed to secure and lock the hot pot in the cage. When a detainee wishes to use the hot pot to boil water, the standard procedure calls for an Officer to open the cage with a key, allow the detainee to fill the hot pot with water from the shower, then re-secure the hot pot in its cage.
19
However, at the arbitration hearing, DiSchino candidly
testified that the other officers he interviewed, and
“many” detainees, told him that the hotpots had been self-
service for “a long time.” His report did not mention
that.
II. Contentions of the Parties.
The MSO
Superintendent Costello thoroughly considered all the
facts and circumstances in this case. Throughout the
investigation, the disciplinary hearing, and the
arbitration, the grievant blamed a myriad of extraneous
factors for the events of December 14, 2012. He refused to
take responsibility for his own role in the matter. His
negligence that night, coupled with his failure to take
responsibility, demonstrate a complete lack of leadership.
It is undisputed that the grievant committed the
offenses charged against him: he did not send C. to
Medical; he let C. out of his cell; and he allowed him
unfettered access to the hotpot without keeping him under
close surveillance. All of these violated the numerous MSO
policies mandating close supervision of detainees at all
times, and the prevention of violent incidents. MSO Policy
20
also unequivocally requires officers to forward all inmate
requests for medical care to Medical, without judgment.
Furthermore, the grievant failed to log C.’s breathing
trouble, or that he let C. out of his cell. MSO policy
requires officers to log “emergency situations and unusual
occurrences.” It was unusual for a detainee to be walking
the halls at 3:00AM.
The overcrowding at the jail did not excuse the
grievant’s lapses. Overcrowding was not new to him, and
should have led him to watch the tier even more closely.
The grievant’s decision to let C. out of his cell added one
more inmate to the “overflow.” The security tape belies the
Union’s claim that numerous inmates were walking around
during the incident of December 14.
The grievant also cited understaffing as the cause of
the incident, but there is no evidence that staffing on the
grievant’s shift had any impact on his failure to monitor
C. There were no disturbances, no emergencies, and no other
detainees to distract the grievant from this task. An
officer positioned at the entrance to the officers’ station
could see all of the A and B sides. The grievant was not
in that position, but remained in the officers’ station for
approximately one half hour. It is incomprehensible that
the grievant left C. unmonitored during that period. The
21
grievant admitted that the area near the hotpot was visible
from officers’ station.
The grievant’s contention that the condition of the
hotpot cages mitigated his misconduct is a red herring.
Regardless of the condition of the other hotpot cages, the
cage on the B side was in good working order. Lt.
Farrell’s claim that there was no directive governing
inmate access to the hotpots is perplexing, given the
numerous MSO policies regarding monitoring inmates,
maintaining security, and controlling contraband. It is
also belied by the general job description for lieutenants,
which requires them to observe inmates and prevent
disturbances. Finally, Farrell’s statement defies common
sense. It is obvious that detainees should not have free
access to large amounts of scalding hot water. In any case,
there was no evidence that management staff was aware of
this alleged practice. Superintendent Costello received no
reports of broken hotpots, and was not aware of the problem
until the December 14 incident.
The Union
Just cause and fundamental fairness require that an
employee have forewarning that his conduct is subject to
discipline. It is within the MSO’s prerogative to renew
its enforcement of lapsed rules, but it must do so
22
consistently, fairly, and with clear prior notice to
employees. Management cannot reasonably require its
employees to do the impossible. The grievant was tasked
with managing twice the allowable number of detainees with
half the staff. Two officers cannot possibly comply with a
rule that requires constant monitoring of over 100
detainees.
It is clear that the grievant was not required to
obtain permission to release C. Such a requirement would
be nonsensical, given that half of the detainees on the
tier were either unsecured in bunks or in cells that did
not lock. No rule or procedure required the hotpot to
remain locked up, to be opened only by C.O.s on request.
Detainees had helped themselves for years. The detainees,
the C.O.s, the superior officers, and the administration
knew about this practice. Superintendent Costello knew
that the hotpots had been unsecured for a long time, yet
only the grievant was held accountable.
The grievant’s handling of C.’s complaint of
congestion was a judgment call. Medical had recently
cleared C. He saw no signs of distress. The grievant
neither knew nor should have known of C.’s intentions. He
had significant discretion in running his unit. A
reasonable exercise of discretion, even if in hindsight it
23
turns out to have been a mistake, is not just cause for
discipline.
The grievant had no obligation to inform Gardner of
the obvious fact that C. was out of his cell. An officer
has never been required to record releasing a detainee from
his cell in the log.
Instead of giving due consideration to the grievant’s
long and excellent service, the MSO turned that obligation
on its head by using his record to justify excessively
harsh discipline. Superintendent Costello consciously
chose not to mitigate the grievant’s discipline.
As a remedy, the Union asks that the grievant be made
whole in all respects, including reinstatement to rank of
lieutenant, lost wages, lost extra paid details and lost
overtime, with interest from the date of discipline. The
Union requests that the Arbitrator retain jurisdiction for
purposes of the implementing the remedy.
III. Opinion.
In essence, the charges allege that in the early
morning hours of December 14, 2012, the grievant declined
to send C. to Medical when C. complained of breathing
difficulties; let C. out of his cell; and allowed C. to
have free and unsupervised access to the unlocked hotpot.
He did not seek authorization before taking these actions,
24
or record them in the log. As a result, for reasons
unknown, C. inflicted serious injury on the sleeping L. by
dumping an urn full of boiling water on him.
An unusual aspect of the case is that the grievant
never denied any of these things. He admitted to all the
decisions and actions that led the superintendent to
suspend and demote him. It has been the grievant’s
consistent position that they did not constitute misconduct
at all.
Indeed, the central question in the case is closely
related to that position: whether the grievant’s actions
on the night in question, regardless of their extremely
unfortunate consequences, were just cause for discipline.
After reviewing the distinctive facts of this case, I
conclude that they were not.
The superintendent testified that in his opinion,
there were no mitigating circumstances in this case. He
was all too aware that the Cambridge Jail was overcrowded,
understaffed, and run-down, but he did not consider those
factors an excuse for the grievant’s decisions on December
14, 2012. As he testified, “The jail has been that way for
a long time.” As far as the superintendent was concerned,
the grievant’s emphasis on conditions in the jail was
tantamount to a denial of personal responsibility. Nor did
25
the grievant’s positive work history convince the
superintendent to mitigate the penalty. To the contrary,
it denoted that the grievant “should have known better,” in
the superintendent’s words.
While the superintendent’s views are understandable,
they are not really consistent with the contractual
standard of just cause. In general, that standard not only
allows but requires close consideration of context and
surrounding circumstances. The grievant did not use the
conditions at the jail as an excuse. He (and Lt. Farrell
as well) simply described them to show how they dictated
his decisions.
The testimony of all the witnesses in this case, the
MSO’s as well as the Union’s, persuasively demonstrated
that the overcrowding and understaffing at the jail
influenced decision-making at every level, and not for the
better. On the 18th tier, half the detainees slept in
bunks, unprotected and unsecured, without even the minimal
privacy of a cell. There was insufficient room in the
infirmary for inmates who were detoxing from addictive
drugs.
On the grievant’s shift on the 18th tier, two officers
were responsible for over 100 inmates, several of whom had
serious medical or psychological problems. According to
26
the log, three of the detainees were diabetics, and eleven
were on suicide watch. And the grievant testified that C.
was not the only detainee on the tier who was detoxing.
The deplorable condition of the physical plant of the
jail exacerbated the overcrowding and understaffing. The
locks on many cell doors were broken. In the officers’
station on the 18th tier, a dirty screen impaired
visibility, so that officers could see only halfway down
the tier. The security tape shows that in mid-December,
inmates were wearing tank tops and boxer shorts because the
tier was so overheated.
It is necessary to evaluate the grievant’s actions on
December 14, 2012 against this background. The incident
began with C.’s complaint that he was having difficulty
breathing. This required the grievant to decide whether to
have C. escorted to Medical.
The grievant was aware that Policy 608.06 required him
to forward all inmate requests for medical care to Medical,
“without delay and without judgment.” In a perfect world,
the grievant could have complied, and it would have been
the safest course. But under the extraordinary conditions
that existed on the 18th tier, following that rule as
written would have created greater risk for more inmates.
27
As the grievant testified, “[The policy] says what it says;
it doesn’t always work that way.”
Instead, the grievant exercised his judgment,
balancing the risk that the grievant was really ill against
the risk of leaving over 100 inmates, including eleven on
suicide watch, under the oversight of a single officer. C.
was not exhibiting any symptoms of respiratory distress.
The grievant knew from experience that inmates often
complain of feeling ill. He also knew that regardless of
the rule, he could not “bring 116 guys to Medical every
time they want” while maintaining safety and security on
the 18th tier.
Most importantly, C. had also complained of difficulty
breathing just the night before. The grievant had sent him
to Medical with C.O. Gladyszak and Medical sent him back
ten minutes later, having found nothing wrong. This gave
the grievant a strong basis for concluding that the risk of
leaving C. on the tier was slight, relative to the risk of
leaving C.O. Gardner alone.
Under all of these circumstances, the grievant’s
decision against having C.O. Gardner escort C. to Medical
was eminently reasonable. Lt. Farrell agreed with it, and
testified that he would have done the same. “In a perfect
28
world, I’d send him down [to Medical]. … But not every
policy can be followed to the letter.”
Instead, the grievant gave C. something to eat and a
drink of cold water. When C. told him, “Hot water works
better,” the grievant decided to unlock C.’s cell so C.
could get some fresh air and hot water to drink.
On a tier where many cell doors did not lock, and
where roughly half the inmates were already housed in the
hallway, it was arbitrary to discipline the grievant for
letting C. out of his cell. I must agree with the
grievant’s observation that since many inmates were not
locked in cells, “[o]ne more was no big deal.” The MSO’s
claim that it was highly unusual for inmates to walk the
hallways in the middle of the night cannot be accurate,
because the security tape reveals that the grievant was not
the only detainee doing so on the night in question. One
other detainee briefly appears on the tape, fully awake.
If the grievant knew of some particular reason to keep
C. locked up, perhaps his judgment could be faulted. But
as far as the grievant knew, C. was no more dangerous than
any other inmate.8 The grievant had no basis at all for
anticipating his violent outburst. There had been no
8 C.’s booking record was redacted, so it is unknown whether he was charged with a violent crime, or had a prior criminal record.
29
hostility between C. and L.; indeed, during the two days C.
was on the tier, he was sick and kept to himself.
Superintendent Costello testified that detainees were
supposed to stay in their cells even if the doors were
open. But clearly, that was not the expectation or the
practice at the Cambridge Jail before Costello arrived.9
Based on the videotapes, the atmosphere of the 18th tier was
surprisingly relaxed. In the aftermath of C.’s attack on
L., the security tape shows a number of inmates walking
around the hallway talking to each other. No C.O. was
monitoring them, nor were any available to do so, since
they were occupied with C. and L. Officer DiSchino
testified that it was not unusual for inmates to “walk
around.” When it was especially hot, inmates were allowed
to drag their mattresses to the end of the tier on the B
side (where they were not visible from the officers’
station) and sleep by the open window. Superintendent
Costello testified that they did the same to “watch TV in
comfort.”10
9 Evidently, the superintendent tightened procedures after this incident. One detainee opined, “Since Costello came … it’s the same as being in Billerica.” 10 There was a similarly informal atmosphere during the investigatory interviews with the detainees. The interviews took place off the tier, in a small room. Each detainee sat across a table from Officer DiSchino, and was not shackled or restrained in any way. One had a pick comb
30
The grievant’s most controversial decision was
allowing C. to remain outside his cell, unsupervised, with
free access to the hotpot. At first blush, this does seem
somewhat questionable. However, there is no doubt that it
was perfectly consistent with the long-time, well-known
practice at the Cambridge Jail. (Indeed, according to
Superintendent Costello, it is also consistent with the
practice at the new facility in Billerica. Inmates there
have unlimited access to hot water that is piped in, and no
written rule requires C.O.s to monitor them, although
Costello testified that he “would hope” that they do.) In
theory, the hotpot cage was supposed to be locked, and when
a detainee wanted hot water, a C.O. was supposed to unlock
the cage, have the detainee fill the pot from the utility
closet, replace the hotpot in the cage, and lock it up.
However, that procedure had not been in effect for
many years. On the A, C, and D sides of the tier, the cage
doors were broken and simply could not be locked. More
fundamentally, the procedure was so time-consuming, and
there were so many inmates and so few C.O.s, that it could
not be followed. The MSO argues that it could not have
been necessary to refill the hotpot all that frequently,
in his afro, which would certainly be contraband in a more secure facility.
31
because it held 55 cups, which was plenty for the
approximately 26 detainees on the B side. However, the
evidence shows that the unlocked hotpots on the other three
sides often did not work, which left the one on the B to
serve anywhere from 50 to over 100 detainees. C.O.s simply
could not afford to devote their attention to this task.
Therefore, detainees were allowed to fill the hotpot and
heat the water by themselves, unsupervised.
I am convinced that this was the practice, and that it
was generally known within the jail. All the hotpot cages,
regardless of whether they were able to be locked, had been
unlocked for years, and detainees had free access to them.
The grievant testified that the hotpot cage “was never
locked as long as I can remember” on any shift. Officer
DiSchino testified that during his investigation, officers
told him that the hotpot cages had been unlocked for “a
long time,” and “many” detainees told him that they served
themselves hot water. Detainee U., an inmate of the B side
of the 18th tier for seven months, stated that before the
incident of December 14, he “always” got his own hot water
from the unlocked cage.
Policy 501.08 requires frequent inspections of the
jail by all managers from the superintendent on down. Even
if this policy was not in place, or was not observed, there
32
is no doubt that managers and superior officers were
frequently on the 18th tier. Common sense tells us that
they knew, or should have known, what was openly going on
around them.
The only manager who was not aware of this practice
was Superintendent Costello (although the Union claims
otherwise). Costello had been superintendent of the
Cambridge Jail for, at most, two weeks when the incident
occurred. He had his hands full with the decrepit
facility, including attempting to repair the locks on some
40 cell doors. He testified that he did notice a broken
hotpot cage, but he could not be expected to deduce the
existence of the entire practice of making hot water freely
available.
Superintendent Costello was obviously appalled to
learn this. He was accustomed to running a tighter ship
than the Cambridge Jail, and had every right to do so.
However, when management decides to strictly enforce
previously unenforced rules, employees are entitled to
advance notice of the new regime. It does not comport with
just cause to discipline an employee for engaging in
conduct that that has long been condoned. He should not
have been disciplined for failing to comply with rules or
procedures that had not been in effect for years, or that
33
were impossible to obey without jeopardizing safety and
security.
The grievant made a number of judgment calls on
December 14. His evaluators had repeatedly praised him for
doing so, and for solving problems on the tier on his own.
As it happened, the grievant’s decisions turned out badly,
which he acknowledged, stating, “I made one judgment call
that was detrimental.” Where management had delegated
decision-making responsibility to the grievant, and
commended his use of it, it was unreasonable to expect all
of his judgments to be perfect, especially under the
conditions in effect at the Cambridge Jail.
The final charge against the grievant involves his
failure to tell C.O. Gardner that he had let C. out of his
cell, or to record that, and C.’s complaint of difficulty
breathing, in the log. Policy 501.12.5 lists items that
must be entered in the log. The list does not include an
inmate’s complaint that he does not feel well, nor does it
include releasing an inmate from his cell. Both the
grievant and Lt. Farrell testified that they do not log the
latter unless the inmate also leaves the tier.
As for failing to inform C.O. Gardner that he had
released C. from his cell, perhaps that would have led to a
different outcome, and perhaps not. But nothing required
34
the grievant to do so, and since there was nothing
remarkable or unusual about letting a detainee out of his
cell, it is understandable that he did not.
For all the foregoing reasons, the MSO did not have
just cause to discipline the grievant. In plain terms, he
did nothing wrong. The grievant’s suspension and demotion
will be rescinded, and he will be made whole.
AWARD
The Middlesex Sheriff’s Office did not have just cause to discipline John Coughlin. The MSO shall rescind the suspension of Officer Coughlin. It shall also restore him to his previous rank of lieutenant, retroactive to the date of his demotion. The MSO shall make Officer Coughlin whole for all lost wages and benefits, with interest, including seniority and retirement credit and contributions. The MSO shall expunge all reference to the suspension and demotion from his personnel file and other records. The arbitrator retains jurisdiction for 60 days for the sole purpose of resolving any dispute over the remedy
________________________ Michael C. Ryan Arbitrator December 24, 2015